delivered the opinion of the court.
Upon the trial of this cause, appellant called as a witness Wallace Heckman, the secretary of appellee, and proved by him the genuineness of the signature' to the subscription contract sued upon, and then offered said contract in evidence. Ho question as to any other fact was then propounded by attorneys for appellant to said witness.
Upon the cross-examination of that witness, and against the objection of appellant, attorneys for appellee were permitted to and did enter somewhat at length into an examination of the witness as to the receipt signed in the name of the estate of P. F. W. Peck, by Clarence I. Peck, attorney, as to when and where it was executed, when, where and by whom, and to whom it was delivered, when, where and by whom it was prepared, and the conditions upon which said contract and said receipt was delivered. Said receipt was produced by the witness during such cross-examination. (By direction of the court said contract was marked “ Plaintiff’s Exhibit A,” and said receipt “ Defendant’s Exhibit A.”)
Said receipt was not offered or read in evidence. At the conclusion of appellant’s testimony, and when it rested its case, attorneys for appellee made in writing the following motion, viz.:
“ And now the defendant by its counsel moves the court, upon the close of the plaintiff’s case, upon the trial of said cause, here now to exclude from the jury and evidence the paper writing marked ‘ Plaintiff’s Exhibit A,’ on the ground that the same is incompetent, and on the ground that the same has not been shown by the evidence to be the contract, between the parties, and on the ground that the evidence shows that the same was not the contract of the defendant, and that the same was but a portion of the contract between the parties to the said contract.”
After argument by the attorneys for both parties, the trial judge said: C“I will now require the counsel for plaintiff to offer in evidence the other portion of this contract referred to as ‘ Defendant’s Exhibit A,’ if they desire to do so.” Counsel for plaintiff declined to do so, and then the judge said, ‘‘And thereupon the motion of counsel for defendant is sustained, and ‘ Plaintiff’s Exhibit A’ is excluded from the jury.”
In the record, following discussions by counsel, it is stated as follows, viz.:
“ Thereupon the court instructed the jury as follows:
“ Gentlemen of the jury, it has become necessary, as a matter of law, for the court to exclude from your consideration the alleged written contract that was the basis of the action, and therefore I instruct you in writing as follows:
“ Which instruction was in writing, and marked by the court ‘Given,’ and was read to the jury as follows:
“ The court instructs the jury to find the issues for the defendant.
“ The court further said to the jury:
“ Some one of your number, as foreman, may sign the verdict, which will be simply, ‘We,the jury, find the issues for the defendant.’ It is only a matter of law—failure of proof as it stands, for which the court has to assume the. responsibility.
“ Thereupon the jury rendered their verdict in writing, duly signed by their foreman, finding the issues for the defendant.”
The contract sued upon provides that the payments therein provided for shall be made “ to the owner or owners of the premises where said Stock Exchange shall be located, upon satisfactory evidence being given as to who said owners may be.” The testimony shows, not only the completion of the building, and the lease with the Stock Exchange, etc., but it shows that appellant was “ owner of premises where said Stock Exchange was located.”
Said contract and said receipt are not of the same date, and are not upon the same paper, or attached together, but are physically entirely disconnected. Whether appellant had any knowledge of the existence of said receipt, or was chargeable with such knowledge, does not appear. The appellant corporation was not in existence at the time said receipt was given. Said contract was transferred and delivered to it with the contract for a lease with said Stock Exchange before it erected said building. Merely upon the face of the papers and without proof that appellant was in some manner bound by said receipt, it was error to hold that such receipt formed a portion of the said contract, in the sense and to the extent that unless appellant should introduce the same in evidence as a part of said contract, that then said contract would be excluded from the jury. The receipt does not on its face purport to cast upon the “ owner or owners of said premises,” to whom said contract runs, any duty or obligation. Whatever duty or obligation, if any, may have rested upon any one by reason of said receipt, in so far as appears by this record, 'was upon the estate of P. F. W. Peck, or said Clarence I. Peck.
From what we have said, it follows that it was error to exclude or withdraw said contract from the jury. If there were any facts so connecting said receipt with said • contract, as, that appellant ought not to recover thereon by reason thereof, it devolved upon appellee to show such facts as a defense. Ho such facts ajipear upon the face of the papers.
It is perhaps not necessary for us to go further; but as 'the case must be reversed and remanded for another trial, xve may state that the examination by the attorneys for appellee of the witness Heckman was not, in the main, cross-examination. It was in the discretion of the court, perhaps, to permit such examination of that witness at that time, but appellee thereby made him its own witness. And appellee did not avail itself of its right, at some time during the trial, to offer said receipt in evidence. ■ We do not know of any rule which requires a plaintiff to introduce in evidence facts or papers which are strictly and only matters of defense. It was not incumbent upon appellant to introduce said receipt in evidence.
For the reasons indicated the judgment of the Circuit Court is reversed and the cause remanded.